ZAHEER-UD-DIN KAKAR (CHAIRMAN).--- Through this single Judgment, we intend to dispose of S.As.Nos.413 of 2013 and 4 of 2014, as identical questions of law and facts are involved in both the quoted appeals. In above titled service appeals, filed under section 4 of the Balochistan Service Tribunals Act, 1974, the appellants have prayed for the following relief;---
(1) declare that Notification No,S.VIII-2(1) Gen:/2013 S&GAD dated 23-8-2013 whereby private respondent No,4 BCS Officer previously posted as Settlement Officer Mekran Division, has been posted as Director Fisheries (B-19), is without lawful authority and of no legal effect;
(2) Set aside the aforesaid impugned Notification dated 23-8-2013;
(3) direct the official respondents to repatriate private respondent No,4 to his parent department;
(4) direct the official respondents to discard forthwith the practice of filling vacant posts by the method of transfer/ posting where the posts are exclusively reserved for appointment by the method of promotion in the relevant Rules;
(5) direct the official respondents to immediately place the promotion cases of eligible Deputy Directors (B-18) of the Fisheries Department before the Provincial Selection Board for determination of their fitness to be promoted against the post of Director Fisheries (Marine) (B- 19) strictly in accordance with law;
(6) grant any other relief to which the appellant is found entitled or which is deemed just and proper by this Hon'ble Tribunal in the facts and circumstances of the case;
(7) award costs under section 35 and compensatory costs under 35-A, C.P.C. 1908.
2. Precisely stating the facts of the case are the appellant Qazi Muhammad Akbar in S.A.No,413 of 2013 had joined the Fisheries Department on 12-9-1989, as. Fisheries Officer (B-16) and he was promoted to the rank of Assistant Director (BPS-17) on 5-5-1994 and he was further promoted to the rank of Deputy Director (BPS-18) w,e,f, 27-2-2012 and he stand at S.No,3 in the Final Seniority List of Deputy Director Fisheries (BPS-18) of the Fisheries Department as it stood on 12-7-2013. Whereas, the appellant Khan .Mir in S.A.No,4 of 2014 had joined the Fisheries Department on 30-4-1985, as Assistant Director (BPS-17) and he was promoted to the rank of Deputy Director (BPS-18) w,e,f, 27-2- 2012 and he stand at S.No,2 in the Final Seniority List of Deputy Director Fisheries (BPS-18) of the Fisheries Department as it stood on 12-7-2013. It is the case of appellants that their terms and conditions of service are regulated by the Balochistan Fisheries Department (Grade 16 and above)
Service Rules, 1982 and as per aforesaid rules, one of the prerequisite condition for promotion to the rank of Director Fisheries (B-19) is the successful completion of Mid Career Management Course (MCMC), but none of Deputy Directors Fisheries (B-18) has ever been nominated to participate in the said course. Even otherwise they stood exempted from the requirement of MCMC, consequent upon attaining the age of 50 years in view of Government of Balochistan circular dated 26-6-2008.
According to the appellants that it has been an inconsistent practice in the Fisheries Department that instead of placing cases of eligible officers for consideration of their cases and determination of their fitness for regular promotion to the next rank in accordance with statutory Rules, vacant posts are being filled by posting of ineligible persons belonging to other cadres/departments.
Finally, the appellants have prayed which is mentioned in Para-1.
3. Being aggrieved from the appointment of officers of other cadres/departments and Notification dated 23-8-2013, whereby the respondent No,4 has been posted as Director Fisheries the appellants and other Deputy Directors have preferred joint representation on 19-9-2013, which has not been disposed-of within statutory period by the competent authority. As such, the appellants while finding no other way out have approached this Tribunal by filing the instant appeals.
4. The respondents contested the appeal on legal and factual grounds by filing their separate Para-wise comments.
5. We have heard learned counsel for the parties and have also perused the record in the light of submissions made before us.
6. It is the case of appellants that they are working as Deputy Director (BPS-18) in. Fisheries Department and their terms and conditions of service are regulated by the Balochistan Fisheries Department (Grade 16 and above) Service Rules, 1982 and it has been an inconsistent practice in the Fisheries Department that instead of placing cases of eligible officers for consideration of their cases and determination of their fitness for regular promotion to the higher ranks i,e, Director in accordance with statutory Rules, vacant posts are being filled by posting of ineligible persons belonging to other cadres/ departments and presently the respondent No,4 Mr. Ehsanullah Baloch, BCS Officer, previously posted as Settlement Officer Mekran Division, has now been posted as Director Fisheries Balochistan against an existing vacancy vide Notification dated 23-8-2013, which is against the Rules. From perusal of the record it appears that method of recruitment for appointments against the posts of Director Fisheries (Marine) (B-19), as provided in the Appendix to the Balochistan Fisheries Department (Grade 16 and above) Service Rules, 1982 Which is reproduced herein-below:--- APPENDIX (See rules 3, 5 and 7 (1))
S. No,Nomenclature ofMinimum qualificationMethod of recruitment The post with Basic Pay Scale.For initial recruitment
1. Director Fisheries (Marine) (B- 19)---- By promotion from amongst the members of the Service holding the posts of Deputy Director Fisheries (Marine/Inland/Dams/ Planning/Coordination (B-18) having at least Twelve years Service in B-17 and above; and have Successfully completed Mid Career Management Course, on Seniority cum fitness basis.
A plain reading of the above appendix of Balochistan Fisheries Department (Grade 16 and above)
Service Rules, 1982 abundantly makes it clear that the posts of Director Fisheries (Marine) (B-19) are not meant for appointment "by transfer" or even "by initial recruitment". From the above appendix it is also clear that practice of posting of -outsiders is a clear violation of statutory Rules, and is also against the good governance. It is pertinent to mention here that the Government of Balochistan has also issued a Notification No,SO-II-27(176)/2008-S&GAD dated 7-3-2008, whereby, share between Balochistan Civil Services (Executive Branch) (BCS) and Balochistan Secretariat Service (BSS) against the Field and Secretariat posts after having deducted the share of APUG has been notified.. The said notification was followed by another Notification No,SO-II-5(10)/2010- S&GAD- dated 18-10-2010, whereby certain ex-cadre posts in B-19, B-20 .And B-21 have been distributed in the ratio of 50:50 between Balochistan Civil Services (Executive Branch) (BCS) and Balochistan Secretariat Service (BSS) For convenience relevant portion of the Notification No,SO-H- 27(176)/2008- S&GAD dated 7-3-2008 and Notification No,SO-II-5(10)/2010-S&GAD dated 18-10- 2010, respectively are reproduced hereinbelow for ready reference:--- GOVERNMENT OF BALOCHISTAN SERVICES AND GENERAL ADMINISTRATION DEPARTMENT (Section-II)
Dated Quetta, the March 7, 2008.
NOTIFICATION No. SO-II-27(176)/2008- S&GAD. Consequent upon the acceptance of the recommendations of the Committee constituted vide Notification No,S-II-27(176)/2008-S&GAD, dated 18th January, 2008, the Government of Balochistan is pleased to notify the share between Balochistan Civil Services (Executive Branch) (BCS) and Balochistan Secretariat Service (BSS) against the Field and Secretariat posts after having deducted the share of APUG, as under:--- Grade Total Sanctioned StrengthAPUG BSS BCS Tech BS-19 9 100%4 50%2.5 25%2.5 25%00 Other Posts 1 Director Food 1 2 Director Industries 1 3 Director Sports 1 4 Director Cooperative Societies 1 5 Director Public Relations 1 6 Director (Estt.) Health Dic 1 7 Director (Finance) Health Dic 1 8 Director Reclamation and Probation 1 9 Director Prosecution 1 GOVERNMENT OF BALOCHISTAN SERVICES AND GENERAL ADMINISTRATION DEPARTMENT (Section-II)
Dated Quetta, the October 18, 2010.
NOTIFICATION.
No,SO-II-5(10)/2010-S&GAD. In supersession of this Department's Notification of even No, dated 1st March, 2010, the Government of Balochistan is pleased to distribute the following Ex-cadre posts of BS-19, BS-20 and BS-21 in the ratio of 50:50 between Balochistan Civil Services (Executive Branch)
(BCS) and Balochistan Secretariat Service (BSS), as under:--- BS-19 S.No,'Nomenclature of posts Total postsBCS 50%BSS 50% 8 4.00 4.00 Director Finance QDA =1 Director Finance B-WASA =1 M.D. LIEDA =1 iv Director PDMA =1 v. Secretary Worker's Welfare Board =1 Director Admn. B-WASA Director (Admn.) PMC- CDWA-PHE =1 A plain reading of above Notifications Abundantly manifest on the face of said Notifications that it too does not find mention of the post of Director Fisheries (B-19) which leads to irresistible conclusion that said posts are exclusively meant for the officers belonging to the cadre and there is no room for appointment/posting of any civil servant belonging to other cadre/department.
7. It is pertinent to mention here that the appointment of officers of other cadres/departments in the Fisheries Department were also called into question before the Hon'ble High Court of Balochistan in C.P. No,364/1998 and the Hon'ble High Court had took a serious Notice of such illegal appointments/postings and issued directions to refrain from making such appointments and Show-Cause Notice for contempt of Court was also issued to the then Chief Secretary and Secretary Fisheries but later on, as a result of cancellation of illegal posting and assurance to refrain from doing such illegal acts in future, Contempt Notice was Discharged by the Hon'ble High Court of Balochistan.
8. In view of the above it is crystal clear that the post of Director Fisheries (B-19) is reserved under the Rules for departmental promotion of Deputy Director, therefore, ignorance of senior eligible officers and filling the vacant post of Director Fisheries (B-19) by the method of transfer/posting is against the Rules and has also resulted in grave miscarriage of justice jeopardizing eligible officer's future career and such course also amounts to glaring violation of the command of Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973, according to which it is an inalienable right of every individual to be dealt with in accordance with law. For convenience Article-4 of the Constitution of Islamic Republic of Pakistan is reproduced herein- "4.(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. Wherever he may be, and of every other person for the time being within Pakistan.. "
9. The Hon'ble superior Courts have also discouraged the posting of none cadre officers against cadre posting by transfer. In this respect reliance is placed on 2012 PLC (C.S.) 1232 and 2011 PLC (C.S.) 956 (High Court of Sindh). The relevant Para of the 2012 PLC (C.S.) 1232 is reproduced herein- below:--- "9. To improve the working of the departments we are of the considered view that postings of the nature should be discouraged and respect should be given to the law and the rules in order to minimize the unrest amongst the officers of the department who suffer and or being deprived of their lawful right to promotion or otherwise .......
10. We for the aforesaid reasons direct the respondents to immediately take steps to withdraw all the officers (mentioned in the list) posted either on the basis of deputation and or on transfer out of their cadre and posted to different cadre posts in different departments of Sindh, be repatriated to their parent departments in the Federal Government and or to be transferred and posted to their own cadre and department in Sindh within 15 days from the date of communication of this order. In future the Sindh government/competent authority is restrained from issuing order of postings of any non-cadre officer against cadre posting by transfer under section 10 of the Civil Servant Act nor they would depute any officer from Occupational Group of the Federal Government or from autonomous except in exigency unless he meets the criteria of matching qualification, eligibility and experience to the proposed post."
10. As provided in the Rules, one of the prerequisite conditions for promotion to the rank of Director Fisheries (B-19) is the successful completion of Mid Career Management Course (MCMC), in other words promotion in B-19 has been made subject to successful completion of said course. During the course of arguments learned counsel for appellant contended that non of the Deputy Directors Fisheries (B-18) including the appellants have ever been nominated to participate in the said course. It may also be not out of place to mention here that notwithstanding the aforesaid mandatory requirement of successful completion of Mid Career Management Course (MCMC) to meet the eligibility for promotion in (B-19), the appellants stood exempted from the requirement of MCMC consequent upon attaining the age of 50 years in view of Government of Balochistan Circular No,SORI.1(15)/ S&GAD/2007/Vol-I/648-750 dated 26-6-2008. For convenience the letter/circular dated 26-6-2008 is reproduced herein-below:--- "3. The successful completion of Administrative Staff Course (ASC) Mid Career Management Course (MCMC) by BS-18 officers shall be a mandatory condition for promotion to BS-19 w,e,f, 1st January, 2009. The said course shall not be mandatory for those officers who are 50 and above years of age."
11. From perusal of the Seniority List of Deputy Director Fisheries (BPS-18) of the Fisheries Department as it stood on 12-7-2013, shows that the date of birth of Mr.Khalil-ur-Rehman is 22-3-1959, the date of birth of appellant Khan Mir is 5-3-1958 and date of birth of appellant Qazi Muhammad Akbar is 2-12-1960. Under the said peculiar circumstances, cases of promotion of appellants and Mr.Khalil- ur-Rehman in B-19 were matured about 4 or 5 years ago and the department was under legal obligation to place their promotion cases before the Provincial Selection Board, but said obligation has not been discharged by the respondent No,3.
12. In view of the above discussion appeals are partly accepted with directions to the respondent No,3 to process/place the cases of the eligible Deputy Director Fisheries (Marine) who fulfills the criteria for promotion in (BPS-19) before the Provincial Selection Board within two months positively.
Furthermore, the official respondents are directed to reconsider the Notification No,S.VIII-2(1)
Gen:/2013 S&GAD dated 23-8-2013, to the extent of respondent No,4 (Ehsanullah Baloch) in the light of relevant Rules/Paras Nos.6, 7, 8 and 9 (supra.) With no order as to cost. Copy of this Judgment be sent to the official respondents for information and compliance. Files after completion be consigned to record.